Points of View: Right Wing versus Left Wing Janus, Unions, and Agency Fees

December 11, 2017

3 minute read

Last week the administration of President Donald Trump officially entered the fray on a case critical to public employee unions. It filed an amicus brief on a case pending before the Supreme Court asking SCOTUS to invoke the first amendment in ending all so-called “agency shop” fees by non-union members of a public union’s bargaining unit.

This means that the U.S. Justice Department has officially changed sides. On January 11, 2016, the U.S Supreme Court heard arguments about public employee unions, mandatory fees, and the economics of the free-rider problem. At that time, the Justice Department (under former President Obama) supported the constitutionality of the agency shop arrangement. In the spring, after Justice Scalia’s death, SCOTUS split 4-4 on the subject, in Friedrichs v. California Teachers Ass’n.

The issue is this: labor unions often negotiate arrangements with their employers in which all employees in a particular bargaining unit (in a “shop” as the usual phrasing goes) must either belong to the union or pay the union fees for the benefits they receive as a consequence of the union’s work. The non-members sometimes object to paying these fees, but the mandatory character of ‘agency shops’ has long been justified on the ground that “free riders” would undermine the union’s ability to accomplish positive things.

Now they’re revisiting the matter, in Janus v. AFSCME. Now, though, with a Trump appointee in Scalia’s old seat, and with the Justice Department now submitting briefs on the conservative side of the issue, it seems likely the means of operation in public sector collective bargaining is about to shift.

In recent years, the “agency shop” rule has come until attack on first amendment grounds. Unions often engage in core political activity such as the support of certain candidates, and it seems suspicious to require a non-member who may support the opponents of those candidates to pay for the union bosses’ favorite as a condition of his/her own employment there.

Since 1977, then, as a consequence of the Abood decision of that year, the agency shop fees assessed non-members of public employee unions have had to be adjusted so that they are not paying for political activities, but only for “collective bargaining, contract administration, and grievance adjustment” mechanisms.

It is that forty-year old compromise that is now under assault, on the theory that all activity of a public union is in essence political, so on first amendment grounds non-members shouldn’t have to pay for any of it.

Right Wing View

In the newly filed brief, the Trump/Sessions Department of Justice said that SCOTUS should overturn Abood on this subject because Abood “relied on an empirical assumption – that exclusive representation in the public sector requires mandatory agency fees” that subsequent experience indicates is false.

Indeed, the amicus brief claims that the court has itself rejected that empirical assumption. This is apparently a reference to Justice Alito’s opinion for the court in Knox v. Service Employees, although one might argue that it is a stretch as to the reading of that opinion.

Separately, the Justice Department now accepts the all-union-activity-is-political argument, saying that the Abood decision “failed to apply to collective bargaining the principles of free expression and free association that it properly held prohibit coerced support for political candidates.”

Left Wing View

Other entities have chimed in to the same effect. A local of the American Federation of Teachers tweeted that the decision of Janus was “sadly predictable,” and that though Trump “ran as a populist” he is governing as a plutocrat.

Shaun Richman, writing for In These Times, reviews two books and speaks to a Big Picture. Although there was a period in U.S. history after the Second World War when “most employers engaged in a largely stable pattern of collective bargaining that recognized unions,” that was a brief exceptional period in history, not the norm, and the U.S. has since returned to the norm of “corporations … going to war against their workers.”

Final Thought

It ought to be said that the free-rider problem isn’t a straightforward empirical matter. It is a fundamental premise baked into all modern economics, where it is known as the issue of “external benefits.”

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